CREWMEMBER ACCIDENT CLAIMS AGAINST CRUISE LINES AND OTHER EMPLOYERS

     The cruise lines and a cargo ships employ hundreds of thousands of crewmembers from all over the World. Typically, crewmembers work aboard ship 7 days a week for as long as 9 months at a time. Under maritime law, the cruise lines and other employers are obligated to provide crewmembers with a safe place to work, with proper supervision/training, with a seaworthy vessel, with prompt and adequate medical treatment, and with Maintenance & Cure. An employer’s failure to meet these obligations may entitle a crewmember to pursue claims for:

     If injured while working aboard ship, it is important for you to contact a Cruise Line Accident Lawyer/Maritime Accident Lawyer to ensure that your rights are protected. For example, under U.S. maritime law, you generally must file your lawsuit within three (3) years of the incident/injury, and, pursuant to your Contract of Employment/Collective Bargaining Agreement (CBA), you may be required to pursue your claim before an international Arbitration Tribunal in certain pre-determined locations, rather than in a traditional U.S. court.

We currently represent or have represented Clients against:

• Betty K Agencies, Ltd./Betty K Agencies (USA), LLC/Betty K VI, LLC
• Britannia Ships Services
• Crystal Cruises
• Dorick Navigation, SA
• Image Corporation
• International Cruise Services, Inc.
• Royal Caribbean Cruises

Slip & Fall Accidents

    The Jones Act, originally enacted in 1920 (Merchant Marine Act of 1920), permits a seaman injured in the course of his/her employment to maintain an action to recover damages for the negligence of his/her employer. The Jones Act provides, inter alia:

46 USC §30104, et seq.

     A cruise line or other employer’s fundamental and non-delegable duty under the Jones Act is to provide crewmembers with a reasonably safe place to work. The standard by which an employer’s conduct is measured is that of negligence. Under maritime law, “negligence” is defined as a failure to exercise that degree of care which an ordinarily prudent person would exercise under similar circumstances in discharging the duty owed. Clements v. Chotin Transport, Inc., 496 F.Supp. 163 (M.D.La. 1980). Importantly, as concerns causation, in order to recover damages, a crewmember suing a cruise line or other employer under the Jones Act need only show that the cruise line/employer’s negligence contributed “even in the slightest” to his/her injury. Perkins v. American Electric Power Fuel Supply, Inc., 246 F.3d 593 (6^th Cir. 2001); Simeon v. T. Smith & Son, Inc., 852 F.2d 1421 (5^th Cir. 1988). Because an employer’s duty is non-delegable, a crewmember’s employer may be liable under the Jones Act even if it is not the owner of the vessel aboard which the crewmember is injured.

Repetitive Stress/Trauma Injuries

     As with slip and fall accidents, insofar as their day-to- day work duties, a cruise line or other maritime employer is under a duty to ensure that the job duties of its crewmembers are reasonable and safe. All too often, the repetitive nature of many cruise line jobs such as Cabin Stewards and Cleaners are repetitive and not ergonomically sound leading to what are known as repetitive stress injuries. These are injuries caused not by an acute identifiable event, but instead by the frequent and repetitive performance of the same physical activity, for example, repetitive lifting and repetitive hand movements.

     These repetitive stress injuries can take the form of hand/wrist injuries, knee injuries, or spinal injuries to name a few and result in conditions just as serious, if not more so, than those caused by a single traumatic event. As a result of the long-standing and insidious nature of these repetitive injuries, very often the only curative treatment involves risky surgery. A Cruise Line Accident Lawyer/Maritime Accident Lawyer can ensure that you receive the medical attention you need and are entitled to.

Failure to Provide Proper and Adequate Medical Treatment

     Among the most far reaching obligations under maritime law is the duty on the part of an employer to provide its crewmembers with prompt, proper, and adequate medical treatment. Although providing an ill or injured crewmember with medical care is part of the no-fault Maintenance & Cure obligation (discussed below), a seaman’s employer may also be held liable under the Jones Act inasmuch as a breach of the “duty to treat” is a tort as a well as a breach of contract. Cortes v. Baltimore Insular Line, Inc., 287 U.S. 367, 53 S.Ct. 173 (1932).

     So broad and far-reaching is the duty to treat, that courts have held that employers are under an obligation to review and intervene in medical treatment to the point of “second-guessing” the judgment of a medical provider. Central Gulf S.S. Corp. v. Sambula, 405 F.2d 291 (5^th Cir. 1968).

Shipboard Medical Negligence

    A cruise line or other maritime employer is liable under the Jones Act for the negligence (malpractice) of a shipboard medical provider.

   De Zon v. American President Lines, Ltd., 318 U.S. 660, 63 S.Ct. 814 (1943), reh’g denied, 319 U.S. 780, 63 S.Ct. 1025 (1943) involved the misdiagnosis of a seaman’s eye injury by a Ship’s Physician resulting in loss of the eye. Although affirming the judgment below for want of a finding of negligence on the physician’s part, the U.S. Supreme Court unequivocally held that an employer is liable for the negligence of its Ship’s Physician in treating an injured seaman, as such physician is an agent of the employer performing the employer’s business. The Court stated, inter alia:

Id. at 819.

Shoreside Medical Negligence

   A cruise line or other maritime employer is liable under the Jones Act for the negligence (malpractice) of a shoreside medical provider.

     In De Centeno v. Gulf Fleet Crews, Inc., 798 F.2d 138 (5^th Cir. 1986), the Fifth Circuit Court of Appeals held an employer vicariously liable for the negligence of a shoreside physician it selected to treat a sick crewmember. While at port in California and awaiting repatriation to his native Honduras, the seaman reported to the Captain that he was ill and arrangements were made for him to be seen by a local physician. The record at trial reflected that the seaman returned to the vessel immediately after the doctor’s visit, at which time he went straight to bed but continued to rapidly deteriorate. Upon his arrival in Honduras four (4) days later, the seaman was taken to a local physician by his wife. Tests now revealed that his glucose count was almost three (3) times above normal, and he was diagnosed with diabetes and a diabetic pre-coma. Following immediate measures, although the seaman’s condition improved and his blood glucose stabilized, eight (8) days later, as a result of the ingestion of bacteria from the local water supply, the seaman developed an acute condition and shortly thereafter passed away. At trial, the Honduran physician opined that the crewmember should have remained in the U.S. for treatment. With regard to the medical treatment provided to the seaman by the shoreside physician in California, the Honduran physician testified that the symptoms with which the seaman presented in California were typical of diabetes, and that any physician confronted with a patient exhibiting these symptoms should have suspected diabetes and ordered the appropriate blood test. In affirming the lower court’s finding that the employer negligently failed to provide adequate medical treatment, the Fifth Circuit held that the negligent failure to provide the seaman with prompt, proper, and adequate medical treatment was the cause of his death and that his employer was “vicariously liable for the negligence of a physician it chooses to treat its seaman [sic].”

     De Centeno is instructive on another very important point. The court’s reference to the employer’s negligent failure to provide adequate medical treatment as “a cause” and not “the cause” of the seaman’s death serves to underscore the truly high degree of care owed to crewmembers by their employers, and the fact that a seaman suing under a Jones Act theory of liability may recover upon finding that his employer’s negligence contributed “even in the slightest” to the injury or death sued upon.

Failure to Provide Maintenance & Cure

     The Maintenance & Cure obligation is one of the oldest and most pervasive concepts under maritime law. Internationally, it appeared in the laws of seafaring nations as early as Medieval times, The Laws of Oleron, and, in the United States, it dates back to at least 1823. Harden v. Gordon, 11 Fed.Cas. 480 (C.C.D.Me. 1823). So pervasive and broad is the duty of Maintenance & Cure, that the U.S. Supreme Court has held that all doubts as to entitlement, need for medical treatment, and attainment of maximum medical improvement (MMI) are to be decided by an employer in favor of the seaman. Vaughan v. Atkinson, 369 U.S. 527, 82 S.Ct. 997 (1962). That is, if there is a grey area, the decision must be made in the crewmember’s favor. The cruise lines and other employers often ignore this well-settled concept.

     Maintenance & Cure refers to the duty on the part of a seaman’s employer pursuant to the contract of employment to provide lodging, meals, and/or necessary medical attention for a crewmember who sustains injury or becomes ill while in the service of the vessel. The Osceola, 189 U.S. 158, 23 S.Ct. 483 (1903), Calmar S.S. Corp. v. Taylor, 303 U.S. 525, 58 S.Ct. 651 (1938); Cape Shore Fish Co., Inc. v. United States, 330 F.2d 961 (Ct.Cl. 1964). Importantly, this obligation exists regardless of fault; that is, a crewmember need not prove that his injury or illness was as a result of his employer’s negligence and he/she need only prove that his/her injury or illness occurred while employed.

     Maintenance is a per diem living allowance intended to provide a seaman with food and lodging as long as he/she is receiving medical treatment and has not reached MMI. Calmar, 58 S.Ct. at 653; Pelotto v. L&N Towing Co., 604 F.2d 396 (5^th Cir. 1979). Cure involves the provision and payment of adequate curative medical treatment again to the point of MMI. Id. Importantly, despite an employer’s obligation to provide and pay for cure, a seaman is entitled to choose his/her own doctors. A Cruise Line Accident Lawyer/Maritime Accident Lawyer can assist and ensure that an ill or injured crewmember receives all necessary medical treatment.

     A crewmember’s employer may not terminate Maintenance & Cure before the crewmember has reached MMI. See generally Pelotto, 604 F.2d at 400. Importantly, it is not up to the company or the company’s lawyer to determine MMI; instead, determination of whether a seaman has reached MMI is strictly a medical question. Breese v. AWI, Inc., 823 F.2d 100 (5^th Cir. 1987).

Unseaworthiness

     The Warranty of Seaworthiness imposes upon a shipowner or operator the duty to provide crewmembers with a vessel fit for duty. The concept of Unseaworthiness is the subject of the now famous second proposition of The Osceola: “that the vessel and her owners are . . . liable . . . for injuries received by a seaman in consequence of the unseaworthiness of the ship, or a failure to supply and keep in order the proper appliances appurtenant to the ship.” The Osceola, 189 U.S. 158, 23 S.Ct. 483 (1903). The test employed in determining seaworthiness is whether the vessel, her equipment, and crew are “reasonably fit for their intended use.” Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 80 S.Ct. 926 (1960). Importantly, the doctrine imposes a continuing, absolute, and non-delegable duty on the shipowner or operator to provide a vessel reasonably fit for her intended purpose.

     While a claim for Unseaworthiness, like a claim for Maintenance & Cure, is a general maritime law claim “in admiralty” not entitling a crewmember to trial by jury, combining this claim with one under the Jones Act permits a trial by jury.

Assaults (Physical and Sexual)

     Unfortunately, as a result of negligent hiring, lack of adequate training and supervision, over-working, stressful work conditions, as well as the close proximity of individuals of different backgrounds and nationalities, assaults by fellow crewmembers are not uncommon. Such assaults may subject a cruise line or other employer to liability under both the Jones Act and the Doctrine of Unseaworthiness.

     Under the Jones Act, a seaman’s employer is liable for an assault by a fellow crewmember if (1) the assault is committed by another crewmember in a supervisory capacity, or (2) the employer failed to prevent the assault when it was foreseeable. Fountain v. John Graham & Sons, 833 F.Supp. 873 (S.D.Ala. 1993); Colon v. Apex Marine Corp., 832 F.Supp. 508 (D.R.I. 1993).

     Under general maritime law, an inadequate crew may render a vessel unseaworthy. In this regard, an aggressive or violent crewmember renders a vessel unseaworthy. Boudin v. Lykes Bros. S.S. Co., 348 U.S. 336 75 S.Ct. 382 (1955).

Wrongful Death

    Among the more complicated areas of maritime law is wrongful death litigation — standing, remedies, and recovery being dependent on the status (seaman vs. non-seaman) of the deceased at the time of the accident and on the location of the accident.

     While the Personal Representative of a seaman, just as the Personal Representative of a non-seaman (discussed above), may maintain a cause of action under general maritime law or the Death on the High Seas Act (DOHSA), 46 USC Appx §761, et seq., the Personal Representative of a seaman also has a remedy under the Jones Act. In the case of the wrongful death of a seaman as a result of injury sustained in the course of his/her employment, the Jones Act authorizes the Personal Representative to bring a cause of action against the employer. The Jones Act provides, inter alia:

46 USC §30104, et seq.

     In the case of the wrongful death of a seaman in territorial waters as a result of the negligence of his/her employer, the Personal Representative may file suit for Unseaworthiness under general maritime law, Moragne v. States Marine Lines, Inc., 398 U.S. 375, 90 S.Ct. 1772 (1970), on remand, 446 F.2d 906 (5^th Cir. 1971), and join this with a claim under the Jones Act. By joining the actions, trial by jury will be permissible. Sealand Service, Inc. v. Gaudet, 414 U.S. 573, 94 S.Ct. 806 (1974), reh’g denied, 415 U.S. 986, 94 S.Ct. 1582 (1974). The Jones Act preempts application of a state’s Wrongful Death Act. Gillespie v. U.S. Steel Corp., 379 U.S. 148, 85 S.Ct. 308 (1964). While this may seem counter-intuitive in light of Yamaha Motor Corp. v. Calhoun, 516 U.S. 199, 116 S.Ct. 619 (1996) (discussed above), in the case of the wrongful death of a seaman in territorial waters as a result of the negligence of a third party non-employer, the Personal Representative is generally limited to suing under general maritime law. Miles v. Apex Marine Corp., 498 U.S. 19, 111 S.Ct. 317 (1990).

     In the case of the wrongful death of a seaman occurring more than one marine league (3 nautical miles) from the U.S. or one of its territories, the Personal Representative may file suit for Unseaworthiness under DOHSA, and join this with a claim under the Jones Act. Again, by joining the actions, trial by jury will be permissible. Doyle v. Albatross Tanker Corp., 260 F.Supp. 303 (S.D.N.Y. 1965), aff’d, 367 F.2d 465 (2 nd Cir. 1966). In the case of the wrongful death of a seaman on the high seas as a result of the negligence of a third party non-employer, the Personal Representative is limited to suing under DOHSA.

     Recovery for seamen is generally limited to pecuniary damages under general maritime law, DOHSA, and the Jones Act. See Miles v. Apex Marine Corp., 498 U.S. 19, 111 S.Ct. 317 (1990). These damages are generally limited to funeral expenses, loss of services, loss of nurture to children, and loss of support. However, the Jones Act contains a survival provision which a knowledgeable Cruise Line Accident Lawyer/Maritime Accident Lawyer may use to recover a potentially significant item of damages in the form damages for the Decedent’s conscious pre-death pain and suffering.